him on that account, unfit to serve on the jury. The opinion would be one in which all must concur; and so was the opinion that "The Prospect Before Us" was a libel. Without determining whether the case put by Hawkins, b. 2. ch. 43. sec. 28. be law or not, it is sufficient to observe, that this case is totally dif ferent. The opinion which is there declared to constitute no cause of challenge, is one formed by the juror on his own knowledge; in this case, the opinion is formed on report and newspaper publications.

The argument drawn from the situation of England during the rebellions of 1715 and 1745, with respect to certain prominent characters, whose situation made it a matter of universal notoriety, that they were the objects of the law, is founded entirely on the absolute necessity of the case; and the total and obvious impossibility of obtaining a jury, whose minds were not already made up. Where this necessity exists, the rule perhaps must bend to it, but the rule will bend no further than is required by actual necessity. The court cannot believe, that at present, the necessity does exist. The cases bear no resemblance to each other. There has not been such open notorious war, as to force conviction on every bosom respecting the fact and the intention. It is believed, that a jury may be obtained, composed of men, who, whatever their general impressions may be, have not deliberately formed and delivered an opinion, respecting the guilt or innocence of the accused.

In reflecting on this subject, which I have done very seriously since the adjournment of yesterday, my mind has been forcibly impressed by contemplating the question precisely in its reverse. If, instead of a panel composed of gentlemen who had almost unanimously formed and publicly delivered an opinion, that the prisoner was guilty, the marshal had returned one composed of persons, who had openly and publicly maintained his innocence; who had insisted, that notwithstanding all the testimony in possession of the public, they had no doubt that his designs were perfectly innocent; who had been engaged in repeated, open, and animated altercation to prove him innocent, and that his objects were entirely opposite to those with which he was charged; would such men be proper and impartial jurors? I cannot believe they would be thought so. I am confident I should not think them so. I cannot declare a juror to be impartial, who has advanced opinions against the prisoner, which would be cause of challenge, if advanced in his favour.

The opinion of the court is, that to have made up and delivered the opinion, that the prisoner entertained the treasonable designs with which he is charged, and that he retained those designs, and was prosecuting them when the act charged in the

indictment is alleged to have been committed, is good cause of challenge.

The suspended jurymen were then called. John H. Upshaw was asked by the court, whether he conceived that the prisoner had pursued his treasonable designs to the time charged in the indictment? Mr. Upshaw answered in the affirmative. And the CHIEF JUSTICE observed, that he was not qualified to serve as a juryman.

J. Bowe, Miles Selden, Lewis Truehart, William Yancey, Thomas Prosser, Nathaniel Selden, John W. Ellis, Armistead T. Mason, and Dabney Minor were successively set aside, after having been further interrogated; because having formed an opinion as to the criminal intentions of the accused, they came within the principle of exclusion just established by the court.

Mr. HAY then moved the court to award a new venire, to consist of a sufficient number, to secure a certainty of supplying the deficient jurymen. He thought, and referred to the authority of Hawkins, in support of his opinion, that the "tales" might exceed the number of the original panel. He supposed, that one hundred and fifty would not be too few. Were it not for the expense, he would move for five hundred: that every man in the community who had read and believed general Eaton's deposition, must believe, that the accused had treasonable intentions; that as so much difficulty had already occurred in obtaining only four jurors, he was very solicitous that a sufficient number should be directed to be summoned at once.

Mr. BURR said, that he was sorry that such inferences had been made; that he thought a different conclusion ought to be drawn from the experience already had; that a very great majority of the forty-eight first summoned, had publicly and frequently declared the most injurious opinions respecting his intentions; but when it should be manifest, that the officer of this court was really disposed to seek proper jurymen, the number could easily be completed.

Mr. WIRT hoped, that when insinuations were thrown out against the marshal of this court, a man of as respectable a character as any in the state, he might be called into court to justify himself.

Mr. WICKHAM objected to his panel; that it contained too many members of assembly, and candidates for public favour and office; that the marshal should have selected the jury from those who were less in the habit of expressing their political opinions than those gentlemen; for that, however respectable they might be, the frequent and public discussion of their opinions, had a tendency to create an involuntary bias on their minds.

Mr. BOTTS said, that it ought not to be understood, that the motives of the marshal were to be questioned; that he was a respectable man, who certainly meant to act faithfully and conscientiously.

Mr. WIRT appealed to the panel itself, as the best proof of the intelligence and integrity of those who had been selected; that they were as respectable men as any in the whole community; that it had been announced from the bench itself, that some abstruse and complicated doctrines of treason, were to be investigated during the trial; that it was therefore natural, that the marshal should have looked out for the most enlightened men, and that the selection should have comprehended some of those very persons, whom the people had before chosen, for the management of their public concerns; but as only four jurors were obtained out of the forty-eight, such a“ tales" should be awarded, as would be certainly sufficient to produce the remaining eight jurors.

The CHIEF JUSTICE stated, that the difficulty of getting jurors, was now in some measure removed, as the opinion of the court was known; that the marshal would not summon a man whose opinions he might have previously understood, although he ought not to interrogate him on the subject; that he would have a good reason for not placing on the panel, any man, who should inform him, that his opinions were strongly in conflict with the test established by the court.

After some desultory conversation, the court awarded a panel of forty-eight, and adjourned till Thursday next.

THURSDAY, August 13th, 1807.

As soon as the court met, Mr. BURR observed, that just before coming into court, he had received a copy of the panel last awarded; that it was defective, in not having the places of residence annexed to the names of the jurors; that he should, perhaps, require till the day after to-morrow, to examine it, which was a less time than the law allowed him for that purpose.

Some conversation ensued, respecting the subpoena "duces tecum," when Mr. HAY stated, that he had found general Eaton's letter, among certain papers, transmitted by Mr. Rodney, and had filed it with the clerk; that he had not found among them, general Wilkinson's letter, of the 21st October, but would seek for it.

Three of the jury summoned on the second venire, were discharged by the court, viz: General Pegrom, because he was then necessarily engaged in military business; in giving the necessary orders, to the officers of his brigade, to get in readiness, its due

proportion of this state's quota of troops, required by the president's proclamation, pursuant to the act of congress. Mr. Lewis, because he owned no freehold in the state of Virginia; and Mr. Moncure, on account of his indisposition.

It was understood, that the marshal should summon three substitutes; and that the prisoner should accept them. So that the venire was still to consist of forty-eight.

The court then adjourned till Saturday, eleven o'clock.

SATURDAY, August 15th, 1807.

The court met according to adjournment.

Present, Chief Justice MARSHALL, Judge GRIFFIN, absent.

The jurymen summoned by the marshal, were severally called, and answered to their names in the following order, except seven absentees.

Jacob Michaux, of Powhattan; William Randolph, of Surry; John Edmunds, of Sussex; George Minge, of Charles City; William L. Morton, of Charlotte; Christopher Anthony, of Goochland; John Darricot, of Hanover; Washington Truehart, of Louisa; Martin Smith, of Prince Edward; Benjamin Tate, of city of Richmond; Christopher Tomkins, of do.; Benjamin Branch, of Dinwiddie; Thomas Branch, of Chesterfield; James Sheppard, of city of Richmond; Gabriel Ralston, of do.; Micajah Davis, of Bedford; Reuben Blakey, of Henrico; Miles Selden, of Sussex; Walter Blunt, of do.; Richard N. Thweatt, of Petersburg; John Fitzgerald, of Nottoway; Robert M'Kim, of city of Richmond; Benjamin Graves, of Chesterfield; William M'Kim, of city of Richmond; Robert Hyde, of do.; Thomas Miller, of Powhattan; Thomas Branch, of Chesterfield; Robert Goode, of do.; Henry Randolph, of do.; Miles Bott, of do.; Henry Bridgewater, of do.; Edward Hallam, of city of Richmond; Anderson Barret, of do.; Henry E. Coleman, of Halifax; Edmund Bailey, of city of Richmond; Holder Hudgins, of Matthews; William H. Hudgins, of do.; John Price, of Henrico; Isham Godwin, of do.; William S. Smith, of do.; George Blakey, of do.; Gray Carrol, of Isle of Wight; Isaac Medley, of Halifax; Richard Curd, of Henrico; Edward Munford, of Powhattan; Samuel Allen, of Buckingham; John M. Sheppard, of Hanover; John Curd, of Goochland. Of whom, there were seven absent.

On motion of Mr. RANDOLPH, Mr. Benjamin Tate was exeused from serving on the jury, on account of his bad state of health. Henry Randolph wished to be discharged, because he was engaged in collecting the public revenue. The court would not, however, admit the validity of the excuse.

Mr. BURR then addressed the court, and observed, that the panel was now reduced to forty; and as it would be exceedingly disagreeable for him to exercise the privilege of making peremptory challenges, to which he was entitled, he would lay a proposition before the opposite counsel, which would prevent this necessity, and would save one or two hours, that might be otherwise unpleasantly spent. He would select eight out of the whole venire, and they might be immediately sworn, and impaneled on the jury.

The CHIEF JUSTICE said, that if no objection were made, it might be done, and that they might be placed at the head of the panel.

Mr. HAY observed, that there could be no utility in objecting to it, as the prisoner could challenge peremptorily, and that he had no objection to this arrangement, as it would be easy for him to examine the qualifications of the eight who were selected, when they were once known.

William S. Smith, then requested to be excused, on account of his indisposition.

Mr. BURR observed, that Mr. Smith was one of those whom he had selected; but he would be sorry to impose such a burden upon any invalid. Mr. Smith was discharged.

When Christopher Anthony was called, he observed to the court, that he had uttered some expressions since he came to town, which he had been told, would certainly disqualify him from serving, according to the rules said to have been laid down by the court. On being interrogated, as to what words he had spoken,

Mr. BURR said, perhaps the words were used through levity. Do you think they would be sufficient to warp your judgment? Answer. No.

Mr. BURR.-Then, sir, you are not disqualified.

Mr. MAC RAE.-State the tenor of those expressions.

Anthony. When I first arrived here, I met with an intimate friend, to whom I observed, that I had come to town with a hope of being placed on this jury, and if I were, I would hang colonel Burr at once without further inquiry.

Mr. MAC RAE.-Did you say so, knowing that such expressions would disqualify you?

Answer. I did not; for I never expected to be put on this panel.

Question. Were you serious?

Answer. Far from it. I spoke in the utmost spirit of levity.

Question. Have you been in the habit of reading the newspapers? Answer. I have.